Citation Nr: 1125456
Decision Date: 07/06/11 Archive Date: 07/14/11
DOCKET NO. 08-07 548 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for a back disorder, to include as secondary to service-connected degenerative joint disease of the right knee.
REPRESENTATION
Veteran represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
C. Ferguson, Counsel
INTRODUCTION
The Veteran had active military service from November 1960 to June 1964 in the U.S. Air Force, and from July 1973 to July 1976 in the U.S. Army.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's increased rating claim for degenerative joint disease of the right knee, as well as his claims for service connection for a bilateral ankle disorder and a bilateral hip disorder. The RO also found that new and material evidence sufficient to reopen the Veteran's claims of service connection for a back disorder and a left knee disorder had not been presented. The Veteran filed a Notice of Disagreement (NOD) in November 2007, and a Statement of the Case (SOC) was issued in January 2008. The Veteran subsequently filed a substantive appeal, on VA Form 9, and perfected his appeal to the Board in March 2008.
Although the Veteran requested to be afforded with a hearing before the Board to be held at the RO on his March 2008 VA Form 9, he subsequently withdrew his hearing request. See the April 2008 withdrawal/waiver of hearing request and the July 2008 VA Form 21-4138; 38 C.F.R. § 20.704(e).
In August 2009, the Board denied the Veteran's claims of service connection for bilateral ankle and bilateral hip disabilities and for an increased rating for degenerative joint disease of the right knee. The Board also remanded the issues of whether new and material evidence had been received to reopen a claim for service connection for a back disorder and for a left knee disorder, for further development.
In December 2010, the Board denied the Veteran's request to reopen his previously denied claim for a left knee disorder. However, after finding that new and material evidence had been presented sufficient to reopen the Veteran's claim for a back disorder, the Board again remanded that issue for further evidentiary development.
Regrettably, the appeal must again be REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action is required.
REMAND
As noted above, the Veteran's claim was previously remanded in August 2009 and December 2010 for further development. However, another remand is required in this case for reasons explained below and to ensure compliance with our previous remand directives, and to ensure that the Veteran is afforded every possible consideration with respect to his claim.. See Stegall v. West, 11 Vet. App. 268 (1998).
In December 2010, the Board reopened the Veteran's claim of entitlement to service connection for a back disorder after determining that he had submitted new and material evidence, and remanded the reopened claim for medical examination. Although the Veteran had been afforded a medical examination and medical nexus opinion in connection with his claim in August 2007, the examiner had only addressed the theory of secondary causation in his opinion. The theory of direct causation in service had also been raised by the record and, consequently, a medical opinion addressing such theory was required.
Specifically, the Board requested that the RO/AMC arrange for a supplemental medical opinion from an appropriate medical professional to address whether the Veteran's back disorder was initially manifest in, or caused by service, or manifested within the first year after service. The examiner was instructed to review the claims folder and Board remand in conjunction with the examination, and to render an opinion as to whether it is "at least as likely as not" or "unlikely" that the Veteran's back disorder is related to the Veteran's period of active military service.
In the Remand portion of the December 2010 decision, the Board noted that the Veteran had sought treatment for back pain in November 1971, January 1972, and June 1973 during his period of service.
The record reflects that a reviewing physician, Dr. M.L., provided the requested opinion in January 2011. At that time, he confirmed review of the claims folder. He noted that the Veteran was seen in January 1972 for complaints of back pain related to a basketball injury, and in February 1973 for complaints of neck and low back pain. However, he wrote that he saw no other reported treatment in the Veteran's service treatment records (STRs). He also made mention that the Veteran had developed chronic neck and low back pain for which he had been diagnosed on multiple times in his primary medical examinations. He further noted that an X-ray in 2007 showed degenerative joint disease of the lumbar spine. He ultimately concluded that the injuries noted in the Veteran's service records of 1972 and 1973 would not account for any degenerative arthritis of his lumbar spine and found that it was less likely than not that his current back pain was related to his military service.
Although the Board observes that the reviewing physician confirmed review of the claims folder, it does not appear that he considered the November 1971 entry in the STRs in rendering his opinion. Indeed, he specifically noted that the 1972 and 1973 injuries did not account for the Veteran's current back pain, and noted that he saw no other treatments in the service records. It is unclear whether consideration of the November 1971 entry would alter the physician's opinion.
In addition, it is notable that recent treatment records include assessments of lumbar spine mild scoliosis convex toward the right, mild degenerative changes of the sacroiliac joints, and probable cervical and thoracic degenerative disc and degenerative joint disease, which were not addressed by the reviewer. In this regard, the Board believes that discussion of the likelihood that a cervical and/or thoracic spine disorder is related to service is particularly warranted in light of the in-service complaints of neck pain. Further, the reviewer provided insufficient rationale in support of his conclusion, by simply stating the opinion that the lumbar spine arthritis was related to the wear and tear of the aging process without discussion of any relevant evidence contained in the claims folder, or of any medical principles. It is important that the reviewer base his or her conclusion on sufficient facts and data, and fully articulate the reasons for arriving at his or her conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion which contains only data and conclusions without any supporting analysis is accorded no weight.). For these reasons, the Board finds that the reviewer's opinion is inadequate for us to review and render a fully informed decision. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record).
Moreover, because this case is being remanded for a supplemental medical opinion for reasons explained above, the reviewer is also requested to provide an opinion regarding whether any diagnosed back disorder, although first manifested after service, was caused or aggravated by an altered gait resulting from the Veteran's service-connected right knee disability.
Accordingly, the case is REMANDED for the following actions:
1. Return the claims folder to the reviewing physician who provided the January 2011 medical opinion (or another appropriate medical professional if Dr. M.L. is unavailable) for a supplemental medical opinion regarding the Veteran's claim for a back disorder. If another medical examination is deemed necessary in order to secure the requested opinion, please so schedule. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner/reviewer in conjunction with the opinion.
a. Based on review of the claims folder, to include prior examination reports, the examiner/reviewer should identify the appropriate diagnosis or diagnoses for any back disorder affecting the thoracolumbar or cervical spine which has been demonstrated by the Veteran since filing his claim in March 2007.
b. Based on review of the claims folder, to include prior examination reports, the examiner/reviewer should state, for each diagnosis of a back disorder, whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the identified back disorder was initially manifested in, or caused by, service; or was manifested during the first year after separation from service; or whether such a relationship to service or initial manifestation within the first post-service year is unlikely (i.e., less than a 50-50 probability.)
c. The examiner should also state, for each diagnosis of a back disorder, whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any identified current back disorder was caused or aggravated by the service-connected right knee disability; or whether such a relationship based on causation or aggravation is unlikely (i.e., a probability of less than 50 percent.)
d. The examiner/reviewer should discuss evidence contained in the Veteran's STRs, to include the November 1971 entry noted on the same page as the January 1972 entry, post-service lay and medical evidence, prior examination reports, and any relevant medical principles in support of his or her conclusions. The examiner/reviewer must also specifically address the Veteran's contention that his right knee disability caused him to develop an altered gait, which put pressure on his low back in rendering his or her opinion.
e. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
f. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.
g. Note: The reviewer/examiner must provide a rationale for any opinion expressed and articulate the reasons for arriving at his or her conclusion. It is important that, if any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon speculation, the reviewer/examiner should clearly and specifically so specify in the report, and explain why this is so.
2. After the above development has been accomplished to the extent possible, the claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and given an appropriate period of time for response. The case should then be returned to the Board, if in order.
The purpose of this remand is to obtain additional development and ensure due process. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).